015-SLLR-SLLR-2006-V-3-SARATH-vs.-ATTORNEY-GENERAL.pdf
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SARATHVSATTORNEYGENERALCOURT OF APPEAL.
BALAPATABENDI.J.,
BASNAYAKEJ.,
C. A. No. 99/2001.
HIGH COURT KANDY 1809/9.
SEPTEMBER 7,2005.
Penal Code – Sections 296, 300 – Convicted – Criminal Procedure Code,Section 283-Dock Statement considered before considering the evidence ofthe prosecution- Would it affect the presumption of innocence – Prejudiced?
CA
Sarath vs
Attorney General (Eric Basnayake J.)
97
HELD:
While writing a judgment a judge must have in his mind theprinciple of law relating to presumption of innocence, theaccused's right to remain silent, burden cast on the prosecutionto prove the case beyond reasonable doubt which stays throughoutthe case.
There is no rule that a particular item/evidence should beconsidered first in the judgment. There is no prescribed sequencein analyzing evidence. The judgment analysed the entire evidenceat the same time. Therefore the fact of considering the dockstatement at the beginning of the judgment would not make anydifference as the prosecution evidence was considered at thesame time.
One must bear in mind that when a dock statement is consideredanywhere in the judgment, the judge who heard the evidence isaware of the prosecution case and would always consider thedock statement while considering the prosecution story. Onecannot consider the dock statement in isolation.
Per Eric Basnayake J.,
“There is no rule to say what a judge should consider first and what should beconsidered last., judges use their inimitable styles in their judgment writing."
An appeal from the Judgment of the High Court of Kandy
Cases referred to:-
R vs Piyadasa – 72 NLR 434
Gunapala and others vs the Republic -1994 3 Sri LR 180
James Silva vs The Republic – 1980 2 Sri LR 167
Queen vs Jayasena – 72 NLR 313 PC
Queen vs Kularatne – 71 NLR 551
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Somasiri vs Attorney General – 1983 2 SriLR 225 at 235
Dr. Ranjith Fernando with Ms D. Jayatilake, Ms, R. A. Udayangani for AccusedAppellant'
W.P.G Dep P. C., Addl. Solicitor General with Ms. Anoopa de Silva, S. C. for theRespondent.
Cur. adv. vutt.
March 9,2006.
ERIC BASNAYAKEJ.The accused appellant (accused) was indicted under section 296 of thePenal Code for causing the death by shooting of the following persons,namely:
A. K. Hemawathie Perera
S. M. Chitrananda Guruge
K. Violet
Lilynona
Padma Gunawardene.
He was also charged under section 300 of the Penal Code for causing theattempted murder of:
K. Simian,
Sheila Gunawardena and
Kalpani Bandara.
After trial before a High Court Judge the accused was found guilty of the1st, 2nd, 4th, 5th, 6th, 7th, and 8th charges. He was sentenced to 45years R. I. on the 6th, 7th and 8th charges (15 years each to runconsecutively.) Death sentence was passed on charges 1,2, 3 and 5. Hewas acquitted on the 3rd charge due to lack of evidence. This is an appealagainst the said conviction and the sentence.
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Attorney GeneraI (Eric Basnayake J.)
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The Unchallenged Evidence.On 06.04.1996 at about 7 p.m. the accused, a policeman, had gone toGilbert’s house. Gilbert’s father-in law, Simian and mother – in- Law, LilyNona, were in the habit of going to Gilbert’s house in the night to watchtelevision. When the accused went to Gilbert’s at 7 p.m., Simion had alsobeen there. The accused was in uniform. He was armed with a rifle. Theaccused had told them that a terrorist was caught armed with a bomb inNawalapitiya town and the police needed to conduct a search, in houses.The accused had chosen Gilbert’s house for that purpose.
I st IncidentThe accused had wanted the names of the people written on a sheet ofpaper. This was done. Then the accused had wanted Simian to send forthe others. Simian had sent a message and got down his wife Lily Nona,daughter Violet, and son-in-Law Chitrananda. Then the accused had wantedtheir signatures placed on the sheet of paper. While the signatures werebeing placed, the accused had opened fire. Chitrananda, Simian and LilyNona had been shot. Chitrananda and Lily Nona succumbed to their injuries.Simian survived to relate the story. That was the 1 st incident.
2nd IncidentViolet the daughter of Simian who was at Gilbert’s had run towards theroad after the 1 st incident. The accused too had disappeared by this time.Thereafter a report of a gun as heard. Later on, the police had found Violetwith gun shot injuries on the road leading to Gilbert's house. Violetsuccumbed to her injuries.
3rd IncidentPadma Gunawardene’s house is about 15 yards from Gilbert’s house.In the night they had heard the sound of something similar in nature to litfire -crackers. This incident occured on 06.04.1996. Being a date close to
2-CM8429
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the Sinhala Tamil New Year it is reasonable to have had such belief. Hencethey had not taken much notice of it Then they had heard someoneknocking at the door. The lights were switched on and the door wasopened to find the accused armed with a gun at the door step. It was thedaughter of Padma, Sachini who opened the door. The accused openedfire and she got injured. When she raised cries, her mother Padma hadcome and the accused shot her dead. Thereafter the accused and goneoff.
4th IncidentResponding to the cries at Gilbert’s house, Padma’s sister Sheila hadgone to Gilbert’s house and when she saw several people injured on theground, had raised cries. Then she had seen the accused coming andthought that the accused was coming to help them. The accused had toldher not to make a noise and opened fire at her and Hemawathie.Hemawathie died of the injuries but Sheila survived to tell the story.
5th IncidentThe accused had gone to Padma’s house a second time and openedfire again.
The other evidenceThe Police have recovered 20 bullet casings among other things fromthe scene of the crime (12 at Gilbert’s house and 8 at Padma’s house).The accused was arrested while hiding in his house with the gun. Thedoctors found injuries on the head, chest and the stomach of the deceasedpersons. Several important organs of the bodies were found damaged.
Well PlannedThe accused finished his beat duty at 2 p.m. that day. He finished hisduties and wrongfully kept the gun with him with ammunition. He was off
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duty, but dressed in uniform. He had no business going to Gilbert’shouse in uniform, armed with a gun. He made up a story about the arrestof a terrorist with a bomb in order to gather everyone to one place so thathe could exterminate them all. Then he wanted the names written in asheet of paper. He wanted to show that he was doing something official ata time of crisis. The accused being a relation and a policeman, no one hadbeen suspicious of what was about to take place. When the names werelisted out he wanted everyone to be at the same place,.presumably makingthings easier for him to carry out his plan. Then he opened fire.
Submission of the Counsel for the AppellantWhen this case was taken up for argument the learned counsel for theaccused admitted the actus reus. The learned counsel did not dispute theevidence elicited. He complained that the learned trial judge had consideredthe dock statement before considering the evidence of the prosecution.
The learned trial judge had rejected the dock statement. As the dockstatement was rejected before considering the prosecution case, hesubmitted that there is no room to consider any doubt that would arisefrom the dock statement. The learned counsel submitted that if a dockstatement is considered prematurely and rejected, it would necessarilyaffect the presumption of innocence although the burden continues torest on the prosecution to establish throughout the case beyond reasonabledoubt notwithstanding the rejection of the dock statement. The prejudicecaused to the accused by the consideration of a dock statement prior tothe evaluation of the case for the prosecution is that the question ofwhether it raises any doubt in the prosecution case or not, fully, partly orin an intermediary fashion cannot be applied if the dock statement hasalready been rejected before the consideration of the prosection case.
In support of his submission Dr. Fernando, Counsel for the accusedrelies on R. Vs. Piyadasa!'] Gunapala and Others vs. The Republic(2)
(3)
James Silva Vs. The Republic Jayasena v. Queen In Piyadasa’s
(4)
case the trial judge in his charge said with regard to the dock statementthat “if you think it is true or probably true, then you must acquit him
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because it casts a reasonable doubt on the crown’s case”. T. S. FernandoJ with Abeysundera and Alles JJ agreeing held that even if the jury did notconsider the appellant's statement to be true or probably true, yet if thestatement could have caused them to entertain a reasonable doubt as tothe truth of the Crown case the appellant was entitled to claim a verdict ofacquittal.
In James Silva Rodrigo J with Ranasinghe J (as he then was) agreeingwas critical with regard to a statement of the trial judge where he statesthat he had considered the defence of the accused in the light of theevidence led by the prosecution. Rodrigo J states that to examine theevidence of the accused in the light of the prosecution witnesses is toreverse the presumption of innocence.
Having considered the Privy Council Judgment in Queen vs. Jayasena(Supra) Rodrigo J states thus “a satisfactory way to arrive at a verdict ofguilt or innocence is to consider all the matters before the court adducedwhether by the prosecution or by the defense in its totality withoutcompartmentalizing and ask himself whether as a prudent man, in thecircumstances of the particular case, he believes the accused guilty ofthe charge or not guilty”.
In Gunapala's case the conviction was set aside and a retrial was ordereddue to the failure of the trial judge as to how a dock statement is to beconsidered. Ismail J held that “the jury must not only be informed that astatement from the dock must be looked upon as evidence subject to theinfirmities attaching to it, but they must also be directed that
If they believe the unsworn statement it must be acted upon,
If it raised a reasonable doubt in their minds about the case of theprosecution, the defence must succeed and
that it should not be used against another accused” Queen ksKularatne {5)Somasiri's Vs. Attorney General<s)
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The trial judge had directed the jury that the plea of alibi which impliedlyarose on the unsworn statements made by the 2nd and 3rd accused hadto be proved by them on a balance of probability. The court held thatimposing such a burden on the accused to prove the defense of alibiconstituted a misdirection on the law in regard to the burden of proof.
Dr. Fernando submitted that a long line of cases, texts and authoritiesrelating to the law applicable to the evaluation of a dock statement suggestthat a trial court is expected to follow a sequence of events in the ultimateconsideration of his findings as otherwise it would tend to defeat theachievement of the eventual judicial evaluation expected of a trial court.He submits that otherwise it would cut across the presumption of innocence.He further submits that if a dock statement is considered prematurely andrejected, it would necessarily affect the presumption of innocence.
I cannot concede the argument of Dr. Fernando. The cases mentioneddo not support such a contention. There is no rule to say what a judgeshould consider first and what should be considered last. Judges use theirinimitable styles in their judgment writing. Section 283 of the CriminalProcedure Code is a follows
The judgment shall be written by the judge who heard the caseand shall be dated and signed by him in open court at the time ofpronouncing it, and in case where appeal lies shall contain thepoint or points for determination, the decision thereon, and thereasons for the decision.
It shall specify the offence if any of which and the section of thelaw under which the accused is convicted and the punishment towhich he is sentenced.
If it be a judgment of acquittal it shall state the offence of whichthe accused is acquitted.
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When a judgment has been so signed it cannot be altered orreviewed by the court which gives such judgment:
Provided that a clerical error may be rectified at any time and thatany other error may be rectified at any time before the court risestor the day.
The judgment shall be explained to the accused thereby and acopy thereof shall be given to him without delay if he applies for it.
The original shall be hied with the record of the proceedings.
While writing a judgment a judge must have in his mind the principles oflaw for example the principle relating to presumption of innocence, theaccused’s right to remain silent, the burden cast on the prosecution toprove the case beyond reasonable doubt which stays throughout the caseetc. I find the learned trial judge has in fact referred to some of theseprinciples in the judgment.
One has to consider all these arguments in the light of the evidencewhich I find is unique in this case. The accused in this case is a policeman.He was charged for causing the death of five of his relations and alsoattempting to cause the death of three others. On the day of the incidentthe accused was engaged in beat duty from 10 a.m. till 2 p.m. He wasentrusted with a rifle which is a T-56. After discharging his duties theaccused should have returned the rifle. He had not done that. The accusedhad other plans.
The judgment
The accused raised a defence of accident in his dock statement. Hesaid that he went to this house on invitation. According to the prosecutionevidence the accused had come to check the inmates. The accused alsosaid that the gun went off when Chitrananda tried to get the gun from theaccused. According to the evidence, while Chitrananda was placing his
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signature as required by the accused, the accused had opened fire atChitrananda. Chitrananda was a soldier. It may be that the accused wantedto fell him first.
The learned Judge considered the dock statement while having a pictureof the unchallenged evidence adduced for the prosecution. If the shootingtook place only at a single place, the defense raised at the dock statementwould have attracted a closer examination. Considering the fact that theshooting took place in more than one place which made the dock statementunworthy of credit, it left the Judge with only one choice, namely, to rejectit. The Judge stated that the dock statement does not create doubt in theprosecution case. Thereafter the learned judge began to analyse theprosecution evidence.
There is no rule that a particular item of evidence should be consideredfirst in the judgment. There is no prescribed sequence in analyzingevidence. The learned judge had analysed the entire evidence at the sametime. Therefore the fact of considering the dock statement at the beginningof the judgment would not make any difference as the prosecution evidencewas considered at the same time. There was no interval between the two.One must bear in mind that when a dock statement is considered anywherein the judgment, the judge who heard the evidence is aware of theprosecution case and would always consider the dock statement whileconsidering the prosecution story. One cannot consider the dock statementin isolation. How can one accept or reject the dock statement withoutknowing the other side of the story?
Hence I see no merit in this appeal. The appeal is dismissed
BALAPATABENDI, J., — / agreeAppeal dimissed.